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DANGER! DANGER! DICTA! How to treat anonymous tips of drunk driving following Navarette v. California and why such treatment is not a “freedom destroying cocktail

DANGER! DANGER! DICTA! How to treat anonymous tips of drunk driving following Navarette v. California and why such treatment is not a “freedom destroying cocktail

Andrew Snow

Fifteen years ago, in Florida v. J.L., the United States Supreme Court held that an anonymous tip of gun possession, uncorroborated by police, did not create a reasonable suspicion of ongoing criminal activity to justify a stop and frisk.[1] The Court rejected the state’s argument that the dangers of illegal gun possession justified an exception to the reasonable suspicion requirements under the Fourth Amendment.[2] While holding the stop unconstitutional, the majority opined that an anonymous “report of a person carrying a bomb” might potentially justify such a public danger exception.[3] Following J.L., “sharp disagreement”[4] spread throughout lower courts, with many relying on J.L.’s dicta to uphold traffic stops based on anonymous tips of drunk or dangerous driving;[5] finding drunk driving posed a danger to the public “not at all unlike a bomb.”[6] Other courts gave no weight to the statements and applied the traditional indicia of reliability test, requiring law enforcement to corroborate the anonymous tipster’s allegation of dangerous driving before making a stop.[7] These differing interpretations left the lower courts “deeply divided” and, according to two Supreme Court Justices, deserved resolution by the high court.[8]

In 2014, when the Court took Navarette v. California,[9] court watchers predicted this split would finally be resolved.[10] The case came to the Court after the California Court of Appeals upheld a traffic stop based on an anonymous tip due to the danger drunk drivers posed to the public, despite acknowledging that officers did not corroborate any illegal activity.[11] However, the Court never addressed the danger question, instead upholding the tip with a traditional reasonable suspicion analysis.[12] Citing several indicators of reliability, the Court upheld the stop without ever mentioning a possible danger exception.[13] Justice Scalia, in a dissenting opinion, accused the majority of serving up a “freedom destroying cocktail” by expanding the reasonable suspicion analysis to the point where any anonymous tip of bad driving would justify a traffic stop.

This Note discusses the lessons lower courts should take from Navarette. Given the Court’s focus on indicia of reliability rather than the danger posed, this Note suggests that lower courts should similarly limit their focus to factors which support, or call into question, the existence of ongoing criminal activity, not the danger posed by the alleged activity. A survey of lower courts that have applied Navarette shows that this is generally their approach. While some courts upheld stops because they shared the same indicia of reliability present in Navarette,[14] others have invalidated stops due to additional indicia of reliability, present in their case but not Navarette.[15] While the results vary, the focus is clearly on factors of reliability, not the dangers posed. That said, some courts are still tempted to consider the danger posed by drunk drivers as part of their analysis.[16] Such temptation will likely continue to persist until the Court rules once and for all on the existence of a danger exception to the reasonable suspicion analysis.

Finally, while it is still too early to be certain, the Note also concludes that it is unlikely Navarette will be the “freedom destroying cocktail” Justice Scalia warned of. Because courts are taking an individualized look at each case, rather than upholding any and all stops, there does not appear to be much risk for an across the board abuse of liberty. Unless lower courts drastically change their interpretation of Navarette, it appears unlikely that Justice Scalia’s fears will come true.

Questions and inquiries regarding this Note may be forwarded to the author at

[1] Florida v. J.L., 529 U.S. 266, 274 (2000).

[2] Id.

[3] Id. at 273–74.

[4] Virginia v. Harris, 558 U.S. 978 (2009), cert. denied (Roberts, J., dissenting).

[5] Id.; see also People v. Wells, 136 P.3d 810, 815 (Cal. 2006) (holding a “possibly intoxicated highway driver” represented a “grave and immediate risk to the public” justifying an investigatory stop without officers personally observing the erratic driving); People v. Shafer, 868 N.E.2d 359, 366 (Il. 2007) (“[W]e hold that informants’ tips regarding possible incidents of drunk driving require less rigorous corroboration than tips concerning matters presenting less imminent danger to the public.”).

[6] State v. Boyea, 765 A.2d 862, 867 (Vt. 2000).

[7] McChesney v. State, 988 P.2d 1071, 1077 (Wyo. 1999) (holding an anonymous tip of drunk driving did not create a reasonable suspicion because the police must corroborate the tip by either observing a “traffic violation or driving indicative of impairment”); Commonwealth v. Lubiejewski, 729 N.E.2d 288, 292 (Mass. Ct. App. 2000) (holding an anonymous tip of reckless driving on the wrong side of the road did not create a reasonable suspicion because the responding officers only observed the suspect driving on the correct side of the road).

[8] Virginia v. Harris, 558 U.S. 978 (2009), cert. denied (Roberts, J., dissenting).

[9] Navarette v. California, 134 S.Ct. 1683, 1687 (2014).

[10] Lyle Dennison, Navarette Argument Preview: Acting on a Callers Tip, Scotus Blog (Jan. 20, 2014, 4:21 PM),

[11] Navarette, 134 S.Ct. at 1687 (2014).

[12] Id. at 1690.

[13] Id. at 1697 (Scalia, J., dissenting).

[14] United States v. Edwards, 761 F.3d 977, 984–85 (9th Cir. 2014).

[15] State v. Rodriguez, 852 N.W.2d 705, 714 (Neb. 2014).

[16] Zabinski v. Commissioner of Public Safety, No. A13-0957, 2014 WL 2441079, at *1 (Minn. Ct. App. June 2, 2014) (Hudson, J., dissenting).  

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